The case for reforming the family policing system

By Violet Boyd

In recent decades, the family policing system (FPS) has intensified, disproportionately affecting poor and minority communities. Over 50% of Black children in the United States will face a home investigation by the age of 18 and 10% will be placed into the foster care system. The repercussions of racialized family policing are tremendous as families are torn apart and children are left with irreversible trauma. Not only does the FPS harm families instead of supporting them, it violates their Fourth Amendment rights. The FPS must be reformed to prioritize childrens’ welfare and uphold families’ constitutional rights. 

The intergenerational effects of the FPS on children and families are significant and demand institutional change. Children separated from their parents often experience grief, confusion, and isolation which can increase risk of criminal behavior, attachment disorders, and early mortality. Research has found no benefits after separation in terms of cognitive outcomes, academic achievement, mental health, or suicide risk. Parents also suffer under the current FPS. In most states, finding of abuse or neglect by an agency can land parents on a child abuse registry which can be devastating. Being on a registry can impact employment, ability to foster children, and licensure for certain professions. Parents have almost no opportunity to contest their listing and can remain on the registry even if they are cleared in court. Such dire consequences for children and parents alike underscore the demand for immediate change. 

The FPS’s racist origins cannot be ignored, with roots tracing back to chattel slavery and Indigenous boarding schools in the United States. Under the system of slavery, forced separation of families was common for the purpose of acquiring slave labor. In Indigenous communities, children were removed from their homes and held in residential schools with the explicit intent of erasing their Indigenous identity. As Dorothy Roberts explains in her book Torn Apart: “[t]he central mission of the child welfare system transformed from providing services to intact [W]hite families to taking Black children from theirs.” Without addressing the FPS’s racist history, prejudice will continue to pervade its practices and disproportionately affect marginalized groups. 

Family agents often employ coercive tactics on vulnerable communities and their power must be constrained. Unlike police, family agencies are not bound by constitutional limits, and many state laws allow them broad discretion. Due to this, many agents exert pervasive state power over families–often outside the limits of agency authority. Unchecked agency power results in unlawful removals, warrantless searches, and racially discriminatory practices. Historically, agents have frequently operated outside the law, deceiving parents about their rights and coercing them into signing voluntary “safety plans” that remove their children without a court hearing. Child Protective Services (CPS) agents have admitted to coercing an investigation by using lines like “Well, I’m not going to stop coming” and “Why not, if you don’t have anything to hide?” Despite these injustices, it is rare for parents to successfully sue agencies due to obstacles such as the lack of applicable protections for parents, qualified immunity laws, and lack of willing attorneys. 

Beyond psychological harm, current practices also violate families’ constitutional rights. Agents frequently enter homes without a warrant, violating the Fourth Amendment that protects citizens against unreasonable searches and seizures. They may lie to parents about their rights, threaten to call the police, or threaten to take children away to force their way into homes. Recent research found that “[e]ach year, child protective services agencies inspect the homes of roughly 3.5 million children, opening refrigerators and closets without a warrant.” Moreover, only about five percent of these children are found to have been physically or sexually abused. CUNY School of Law Professor Tarek Ismail commented on the Fourth Amendment’s role in family policing: “Based on CPS’s broad statutory authority to investigate and the carceral consequences flowing from their searches, courts should apply the same Fourth Amendment restrictions to CPS investigations that would otherwise apply to law enforcement engaged in similar investigative conduct.” CPS must be held to the same standard as law enforcement to ensure that citizens’ rights are protected. 

Civil suits cannot solve family policing issues or replace legislative change; however, they are a useful tool of resistance. Courts are often unaware of the damage caused by the FPS and therefore unable to recognize and prevent harmful agency actions. Because of this, advocates have used impact litigation as a way to protect families from agencies. By bringing the wrongdoing of agencies into the public eye, these suits have the potential to affect crucial social change. One such case that garnered national attention was Kowalski v. Johns Hopkins All Children’s Hospital. In 2017, Beata Kowalski committed suicide after being falsely accused of child abuse and separated from her daughter by CPS. Years later, her family won a $261 million lawsuit against the hospital that initially wrongly accused Beata. Although the Kowalskis were a white, affluent family, their story still highlights the need for CPS reform. 

Another case that emphasizes the importance of family system reform is Rivers v. The City of New York. In 2023, Channetto Rivers sued the Administration for Children’s Services (ACS) and received a settlement of $75,000 after being wrongfully separated from her newborn due to marijuana use. New York legalized the drug in 2021 and established that use alone was not grounds for removing a child. However, after Rivers told doctors that she had smoked before going into labor, they tested her and her baby for drugs without her knowledge. Her newborn tested positive for marijuana and the ACS blocked the hospital from discharging her baby, while they subjected Rivers to invasive, ongoing scrutiny and onerous requirements. The court found ACS violated Rivers’ federal and state due process rights. The separation was also alleged to have been part of a race-based pattern to target Black families, violating the Fourteenth Amendment. Despite knowing the removal was illegal, ACS agents subjected Rivers to random drug tests, unexpected visits, and other burdensome requirements to maintain custody.  

There is a long-documented history of racial disparities in ACS removals. ACS has failed to rectify these disparities despite internal recommendations and an internal audit of racial bias in the organization. In 2020, an internal audit was commissioned in acknowledgment of ACS’s legacy of racially disparate impacts. The audit found ACS to be “a predatory system that specifically targets Black and Brown parents and applies a different level of scrutiny to them throughout their engagement with ACS.” Workers also reported pressure to be more punitive toward Black parents and removing children out of fear of retribution from ACS leadership rather than genuine concerns about the child. This report was not made public but advocates obtained the information through the Freedom of Information Act. 

While advocacy groups have made some progress in deconstructing the FPS, institutional and legal reform are necessary. Without judicial oversight, vulnerable families will continue to have their rights violated and risk being ripped apart. Only through substantive reform can child welfare serve its intended purpose–protecting, not punishing, the most vulnerable.